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Legal Issues for the Newly Diagnosed
Important Things to Consider and Tips for Protecting Yourself

By Justin Hayford

September 19, 2007

Legal Issues for the Newly Diagnosed: Important Things to Consider and Tips for Protecting Yourself
The simple Boy Scout motto "Be Prepared" is sage advice when it comes to understanding your legal rights. Here at the AIDS Legal Council of Chicago, I've received dozens of calls over the years from people who could have avoided messy problems if only someone had advised them of the law ahead of time. So here are the important fundamentals of HIV law that can help you steer clear of trouble.

Q: Is my HIV status confidential?

A: In most states, the law protects the confidentiality of your HIV status. In Illinois, for example, it is illegal for anyone -- including your doctor, nurse or case manager -- to tell your roommate, your boyfriend, your family, your employer, your landlord, or most anyone else that you are HIV-positive unless you give specific, written permission.

Of course, there are exceptions. Most states can legally report your name to the local department of health. Some states (like Illinois) require schools to be notified if a student is HIV-positive. But by and large, you have the right to decide who knows your HIV status.

Legally, is there anyone you have to tell? Yes: anyone you might expose to HIV. Generally speaking, this means your sex or needle-sharing partners. In every state it is illegal to have sex or share needles without first disclosing your positive HIV status to your partner.

Q: Do I have to tell my employer I have HIV?

A: No. You have no duty to disclose your HIV status to your employer. Our rule of thumb is: you should consider telling your employer only if you need something, like an accommodation under the Americans with Disabilities Act or leave under the Family and Medical Leave Act (both discussed below). Otherwise, keep it to yourself.

The rules may be different for some health care workers. If you are a health care worker and your job requires you to disclose, you should speak to a lawyer about your particular situation.

Q: If my boss finds out I'm HIV-positive, can he/she fire me?

A: It would be illegal for your boss to fire you (or demote you, or take any other action against you) simply because you have HIV. The federal Americans with Disabilities Act (ADA) prohibits such discrimination in the work place. Companies with 15 or more employees are covered by the ADA. Many cities, counties and states have laws that also prohibit disability-based discrimination in the work place.

But remember, any employee who misses too much work, or can't keep up with the demands of the job, can be fired.

Q: Can my employer deny me health insurance because I have HIV?

A: No. If you are eligible for group insurance at work, then you must be accepted onto the insurance plan like every other eligible employee. You cannot be singled out and denied coverage, or charged a higher premium. Even if the insurance application specifically asks if you have HIV -- that's a question you must answer honestly -- you still must be accepted into the insurance plan.

Q: I currently have insurance through work. If I get a new job with new insurance, won't that new policy refuse to pay for my pre-existing condition?

A: Not necessarily. Not all insurance plans have pre-existing condition exclusions. If yours does, a federal law called the Health Insurance Portability and Accountability Act (HIPAA) may help you. If you had prior group insurance coverage for at least 12 consecutive months when you get your new group insurance, then the new policy must cover whatever pre-existing conditions you have.

Q: If I need time off of work to take care of my health, am I entitled to take it?

A: Probably. First, the Americans with Disabilities Act says that people with disabilities have a right to reasonable accommodations at work. Time off from work can sometimes count as a reasonable accommodation, so long as you're not asking for too much time off. Other common reasonable accommodations include:

Whether a particular accommodation is reasonable depends upon many factors, including the size of your company and the nature of your job duties. For example, it might be reasonable for an airline reservation agent to start work an hour later, but the same schedule would not be reasonable for a kindergarten teacher.

Second, the Family Medical Leave Act (FMLA) lets employees take up to 12 weeks of unpaid leave each year for serious health conditions. You can take the leave a day or half day at a time to go to doctor appointments. To qualify for FMLA leave, you have to meet three conditions:

  1. you've already worked at your job for at least 12 months,
  2. you worked an average of at least 25 hours a week, and
  3. your company has at least 50 employees

Knowing your legal rights is a great way to protect yourself. To find a legal agency with expertise in HIV law, try calling your state's AIDS hotline, or use the American Bar Association's Directory of Legal Resources for People with HIV/AIDS, at www.abanet.org/AIDS/publications/aidsdirectory.pdf.

Justin Hayford has been a paralegal with the AIDS Legal Council of Chicago since 1991.


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